Ewen, et al. v. MacCherone, et al.

Owners of a condominium unit brought a negligence and nuisance action against the owner and occupant of a neighboring unit, alleging that the defendant and his guests smoke cigarettes in his unit and that the secondhand smoke invades plaintiffs’ unit.  Plaintiffs seek $25,000 in damages.  Defendants filed a motion to dismiss, arguing that the bylaws, rules and regulations permit smoking in individual units and many other parts of the condominium.  Plaintiff argues that the eleventh paragraph of the rules and regulations of the condominium, which states that “No Unit Owner shall make or permit any disturbing or objectionable noises, odors or activity in the Building…which will interfere with the rights, comforts or conveniences of other Unit Owners,” applies here.  The court denied the defendants’ motion to dismiss, ruling that the “bylaws, rule and regulations on their face are silent regarding whether smoking is permitted or prohibited in individual units” and that “the court finds that the facts set forth in the complaint are clearly sufficient to state all of the elements of a cause of action for nuisance.”

On appeal, the Supreme Court of New York, Appellate Term, First Department, at 32 Misc. 3d 12, 927 N.Y.S.2d 274, 2011 N.Y. Misc. LEXIS 2471, 2011 NY Slip. Op. 21185, reversed the civil court and dismissed the complaint because “defendants were not prohibited from smoking inside their apartment by any existing statute, condominium rule or bylaw.”  The appellate court dismissed the negligence claim because the defendants owed no duty of care to the plaintiffs.

25 Misc. 3d 1235A, 906 N.Y.S.2d 772, 2009 N.Y. Misc. LEXIS 3252, 242 N.Y.L.J. 110, 2009 WL 4432449, 25 Misc.3d 1235, 2009 N.Y. Slip. Op. 52428 Civil Court, City of New York, New York County, No. 31580/09 (2009).